U.S. Department of Justice, Office of Management and Finance (Activity) and American Federation of State, Country and Municipal Employees, AFL-CIO, Capital Area Council of Federal Employees, No. 26 (Petitioner) and U.S. Department of Justice, Community Relations Service (Activity) and American Federation of Government Employees, AFL-CIO (Petitioner)

[ v01 p669 ] 01:0669(74)RO
The decision of the Authority follows:

1 FLRA No. 74
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF MANAGEMENT AND FINANCE
Activity
and
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO, CAPITAL AREA COUNCIL
OF FEDERAL EMPLOYEES, NO. 26
Petitioner
Assistant Secretary
Case No. 22-09043(RO)
U.S. DEPARTMENT OF JUSTICE,
COMMUNITY RELATIONS SERVICE
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Petitioner
Assistant Secretary
Case No. 22-09093(RO)
DECISION AND DIRECTION OF ELECTIONS
UPON PETITIONS DULY FILED BY THE AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, AFL-CIO, CAPITOL AREA COUNCIL OF FEDERAL
EMPLOYEES, NO. 26 (AFSCME) AND THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE), UNDER SECTION 6 OF EXECUTIVE ORDER 11491, AS
AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER C. DUFFY
RAPP. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. /1/
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF THE REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
UPON THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE PARTIES'
BRIEFS, THE AUTHORITY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE DOJ.
2. IN CASE NO. 22-09043(RO), THE PETITIONER, AFSCME, SEEKS AN
ELECTION IN A UNIT COMPOSED OF THE MORE THAN 500 UNREPRESENTED
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DOJ'S OFFICE OF
MANAGEMENT AND FINANCE (OMF) LOCATED AT THE WASHINGTON, D.C.
HEADQUARTERS OF THE DOJ. IN CASE NO. 22-09093(RO), THE PETITIONER,
AFGE, SEEKS AN ELECTION IN A UNIT COMPOSED OF THE APPROXIMATELY 110
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE COMMUNITY RELATIONS
SERVICE (CRS). NEITHER THE AFSCME NOR THE AFGE SEEK ALTERNATIVE UNITS.
THE DOJ, ON THE OTHER HAND, TAKES THE POSITION THAT BOTH THE PETITIONED
FOR UNITS ARE INAPPROPRIATE. IT CONTENDS THAT ONLY A UNIT OF ALL OF THE
DOJ'S OFFICES, BOARDS AND DIVISIONS (OBDS), WHICH IT ASSERTS ARE TREATED
AS ONE ADMINISTRATIVE BUREAU, WOULD BE APPROPRIATE. THE PARTIES AGREE
THAT THE PETITIONED FOR UNITS ARE UNREPRESENTED.
THE DOJ IS HEADED BY THE ATTORNEY GENERAL OF THE UNITED STATES.
ORGANIZATIONALLY, THE DOJ CONSISTS OF SIX BUREAUS, THE EXECUTIVE OFFICE
FOR U.S. ATTORNEYS, THE UNITED STATES PAROLE COMMISSION AND, AS
INDICATED ABOVE, A NUMBER OF OFFICES, BOARDS AND DIVISIONS, INCLUDING
THE OMF AND THE CRS, THAT ARE REFERRED TO COLLECTIVELY AS OBDS.
PROGRAMMATICALLY, FIVE BUREAUS, THREE OBDS AND THE EXECUTIVE OFFICE FOR
U.S. ATTORNEYS, WHICH ARE PRINCIPALLY ENGAGED IN ENFORCING AND/OR
ADMINISTERING CRIMINAL STATUTES, REPORT TO THE DEPUTY ATTORNEY GENERAL.
ONE BUREAU AND EIGHT OBDS, INCLUDING THE UNITS PETITIONED FOR HEREIN,
WHICH PRINCIPALLY ENFORCE AND/OR ADMINISTER CIVIL LAWS AND REGULATIONS,
REPORT TO THE ASSOCIATE ATTORNEY GENERAL. THE REMAINDER OF THE OBDS,
THE UNITED STATES PAROLE COMMISSION AND THE FEDERAL BUREAU OF
INVESTIGATION (ON INTERNAL SECURITY MATTERS) REPORT DIRECTLY TO THE
ATTORNEY GENERAL.
THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION (AAG/A) IS
RESPONSIBLE FOR ADMINISTRATIVE MATTERS AT THE DOJ. IN THIS REGARD, HE
PERFORMS BASICALLY THREE FUNCTIONS: ISSUING ADMINISTRATIVE POLICIES FOR
THE DOJ AS A WHOLE AS WELL AS SUPPLYING ALL DOJ'S ACTIVITIES WITH
PERSONNEL SUPPORT, INCLUDING LABOR RELATIONS; PROVIDING DIRECT
ADMINISTRATIVE ASSISTANCE TO THE OBDS COLLECTIVELY; /2/ AND SERVING AS
THE OPERATIONAL HEAD OF ONE OF THE PETITIONED FOR UNITS, THE OMF.
THE BARGAINING HISTORY AMONG OBDS REFLECTS THAT CURRENTLY ONE OBD,
THE BOARD OF IMMIGRATION APPEALS (BIA), HAS AN EXCLUSIVELY RECOGNIZED
UNIT WITH A COLLECTIVE BARGAINING AGREEMENT AND THAT THE DOJ HAD, PRIOR
TO A RECENT REORGANIZATION, GIVEN SEPARATE RECOGNITIONS TO TWO FORMER
OBDS.
IN CASE NO. 22-09043(RO), THE AUTHORITY FINDS THE PETITIONED FOR UNIT
OF ALL OMF EMPLOYEES LOCATED IN WASHINGTON, D.C. /3/ IS APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER SECTION 10(B) OF THE ORDER AS
IT SATISFIES EQUALLY EACH OF THE UNIT DETERMINATION CRITERIA OF THE
ORDER. IN THIS REGARD, THE RECORD REFLECTS THAT THE EMPLOYEES IN THE
PETITIONED FOR UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM OTHER OBD AND DOJ EMPLOYEES. THUS, THE OMF,
WHICH IS THE MANAGEMENT ARM OF THE DOJ, UNLIKE MOST OTHER OBDS IN THE
DOJ, CONTAINS FEW ATTORNEYS AND PARALEGALS, AND HAS A SUBSTANTIAL NUMBER
OF JOB CLASSIFICATIONS AND WORK FUNCTIONS THAT ARE HIGHLY CONCENTRATED
IN THE OMF. OMF EMPLOYEES PERFORM WORK THAT IS SELDOM DONE ELSEWHERE IN
THE DOJ, INCLUDING ADMINISTRATIVE AND LABOR RELATIONS SUPPORT WORK.
MOREOVER, MANY JOBS FOUND IN THE OMF ARE PREDOMINANTLY INDUSTRIAL IN
NATURE AND INVOLVE SPECIALIZED SKILLS SUCH AS PRINTING AND LITHOGRAPHY,
WAREHOUSING AND TELEPHONE COMMUNICATIONS, COMPUTER MACHINERY AND
ELECTRONICS, AND BINDERY AND FINISHING WORK. ALSO, OMF EMPLOYEES HAVE
SEPARATE DIRECT SUPERVISION AND COMPETITIVE AREAS FOR
REDUCTIONS-IN-FORCE, AND THE AMOUNT OF EMPLOYEE INTERCHANGE WITHIN THE
OMF FAR EXCEEDS MOVEMENT INTO AND OUT OF THE UNIT. IN ADDITION, THE
AUTHORITY FINDS THAT SUCH A UNIT WILL ALSO PROMOTE EFFECTIVE DEALINGS AS
EVIDENCED BY THE FACT THAT THE AAG/A, WHO ESTABLISHES LABOR RELATIONS
POLICY AT THE DOJ, IS HIMSELF THE HEAD OF THE PETITIONED FOR UNIT AND IS
THE LOCUS OF PERSONNEL ADMINISTRATION IN THE DOJ, AND HAS THE AUTHORITY
AND STAFF THAT ARE PRESENTLY ENGAGED IN LABOR RELATIONS MATTERS AT ALL
LEVELS OF THE DOJ, INCLUDING THE OMF. FURTHER, THERE EXISTS AN AGENCY
BARGAINING HISTORY WITH REGARD TO OBDS AS REFLECTED BY THE FACT THAT
CURRENTLY IN ONE OBD, THE BIA, THERE IS A UNIT OF EXCLUSIVE RECOGNITION
WITH AN EXISTING NEGOTIATED AGREEMENT /4/ AND THAT EXCLUSIVE
RECOGNITIONS WERE AFFORDED TO TWO FORMER OBDS. THUS, THE PROPOSED UNIT
WILL PROMOTE EFFICIENCY OF AGENCY OPERATIONS AS IT CONSTITUTES A
FUNCTIONAL UNIT WITH A WELL DEFINED MISSION, WHICH IS CONSISTENT WITH
THE ORGANIZATIONAL AND OPERATIONAL STRUCTURE OF THE DOJ. /5/
IN CASE NO.22-09093(RO), THE AUTHORITY ALSO FINDS THAT THE PETITIONED
FOR UNIT OF ALL CRS EMPLOYEES IS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION AS IT SATISFIES EQUALLY EACH OF THE UNIT
DETERMINATION CRITERIA OF THE ORDER. THE CRS, WHICH WAS ESTABLISHED BY
TITLE X OF THE 1964 CIVIL RIGHTS ACT "TO PROVIDE ASSISTANCE TO
COMMUNITIES . . . IN RESOLVING DISPUTES, DISAGREEMENTS, AND DIFFICULTIES
RELATING TO DISCRIMINATION BASED ON RACE, COLOR, OR NATIONAL ORIGIN . .
. ," IS HEADED BY A DIRECTOR LOCATED AT THE WASHINGTON HEADQUARTERS OF
THE DOJ WHO IS APPOINTED BY THE PRESIDENT OF THE UNITED STATES FOR A
TERM OF FOUR YEARS WITH THE ADVISE AND CONSENT OF THE SENATE. ITS
EMPLOYEES CARRY OUT THEIR SPECIALIZED MISSION BY CONCILIATION, MEDIATION
AND TECHNICAL ASSISTANCE. UNLIKE MOST OTHER OBDS, A PREPONDERANCE OF
THE SOME 110 PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE CRS ARE
LOCATED IN 10 REGIONAL OFFICES. CRS EMPLOYEES ARE USUALLY MEDIATORS,
MOSTLY NON-ATTORNEYS, WORK ON TWENTY-FOUR HOURS CALL, TRAVEL OVER FORTY
PERCENT OF THEIR WORK TIME, ARE SUBJECT TO LIMITED SUPERVISION AND ARE
EXPECTED TO DEVELOP THEIR OWN WORK CONTACTS. ALSO, CRS EMPLOYEES OFTEN
WORK UNDER HAZARDOUS CONDITIONS, HAVE SPECIALIZED JOB DESCRIPTIONS, AND
HAVE UNIQUE , BACKGROUNDS IN DISPUTE RESOLUTION WHICH IS DISSIMILAR FROM
MOST EMPLOYEES OF THE OBDS AND ELSEWHERE IN THE DOJ. CRS EMPLOYEES
SELDOM INTERFERE WITH THE DOJ STAFF AND HAVE SEPARATE COMPETITIVE AREAS
FOR REDUCTIONS-IN-FORCE. THUS, THE AUTHORITY CONCLUDES THAT THE
PETITIONED FOR EMPLOYEES SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE OBDS AND THE
DOJ. FURTHER, THE PROPOSED UNIT OF ALL EMPLOYEES OF THE CRS, INCLUDING
THOSE IN THE HEADQUARTERS IN WASHINGTON, D.C., WHICH IS THE LOCUS OF
PERSONNEL AUTHORITY OF THE DOJ, WILL PROMOTE EFFECTIVE DEALINGS. SUCH A
UNIT, AS NOTED ABOVE IN CONNECTION WITH THE OMF UNIT, IS CONSISTENT WITE
THE ESTABLISHED BARGAINING HISTORY AMONG OBDS AT THE AGENCY. MOREOVER,
THE ESTABLISHMENT OF THIS UNIT WILL FURTHER EFFICIENCY OF AGENCY
OPERATIONS AS IT FOLLOWS THE ORGANIZATIONAL AND OPERATIONAL STRUCTURE OF
THE AGENCY AND PREVENTS FRAGMENTATION OF THE CRS INTO POSSIBLE
HEADQUARTERS AND REGIONAL UNITS. /6/
BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT IN CASE NO.
22-09043(RO) THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, AS
AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE UNITED STATES
DEPARTMENT OF JUSTICE,
OFFICE OF MANAGEMENT AND FINANCE, EMPLOYED IN THE WASHINGTON, D.C.,
METROPOLITAN AREA,
EXCLUDING MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AS
DEFINED IN EXECUTIVE ORDER
11491, AS AMENDED.
AS STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. HOWEVER, THE AUTHORITY IS PROHIBITED BY SECTION 10(B)(4) OF
THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO THEIR INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED, AND THE AUTHORITY WILL
DIRECT THAT SEPARATE ELECTIONS BE CONDUCTED IN THE FOLLOWING VOTING
GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE UNITED STATES
DEPARTMENT OF JUSTICE, OFFICE OF MANAGEMENT AND FINANCE, EMPLOYED IN THE
WASHINGTON, D.C. METROPOLITAN AREA, EXCLUDING ALL NONPROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS
AMENDED.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES OF THE UNITED STATES
DEPARTMENT OF JUSTICE, OFFICE OF MANAGEMENT AND FINANCE, EMPLOYED IN THE
WASHINGTON, D.C. METROPOLITAN AREA, EXCLUDING ALL PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS
AMENDED.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER THEY DESIRE TO BE REPRESENTED BY THE AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, CAPITOL AREA COUNCIL OF
FEDERAL EMPLOYEES, NO. 26.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOT: (1) WHETHER THEY WISHED TO BE INCLUDED WITH
THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE RECOGNITION;
AND (2) WHETHER THEY WISH TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO, CAPITOL AREA COUNCIL OF FEDERAL EMPLOYEES, NO. 26.
IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) IS
CAST IN FAVOR OF INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL
EMPLOYEES, THE BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE
OF VOTING GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) IS CAST FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THEY WILL
BE TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT,
AND AN APPROPRIATE CERTIFICATION WILL BE ISSUED BY THE APPROPRIATE
REGIONAL DIRECTOR INDICATING WHETHER THE AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, CAPITOL AREA COUNCIL OF FEDERAL
EMPLOYEES, NO. 26, WAS SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, THE AUTHORITY WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO
THE APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTED FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE AUTHORITY FINDS
THAT THE FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, AS
AMENDED.
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE UNITED STATES
DEPARTMENT OF JUSTICE,
OFFICE OF MANAGEMENT AND FINANCE, EMPLOYED IN THE WASHINGTON, D.C.
METROPOLITAN AREA,
EXCLUDING ALL MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
SUPERVISORS AS DEFINED IN
EXECUTIVE ORDER 11491, AS AMENDED.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE
AUTHORITY FINDS THAT THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL
CONSTITUTE SEPARATE UNITS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED:
(A) ALL EMPLOYEES OF THE UNITED STATES DEPARTMENT OF JUSTICE, OFFICE
OF MANAGEMENT AND
FINANCE, EMPLOYED IN THE WASHINGTON, D.C. METROPOLITAN AREA,
EXCLUDING ALL PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
SUPERVISORS AS DEFINED IN
EXECUTIVE ORDER 11491, AS AMENDED.
(B) ALL PROFESSIONAL EMPLOYEES OF THE UNITED STATES DEPARTMENT OF
JUSTICE, OFFICE OF
MANAGEMENT AND FINANCE, EMPLOYED IN THE WASHINGTON, D.C.
METROPOLITAN AREA, EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
SUPERVISORS AS DEFINED IN
EXECUTIVE ORDER 11491, AS AMENDED.
SIMILARLY, THE AUTHORITY FINDS THAT IN CASE NO. 22-09093(RO) THE
FOLLOWING EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE UNITED STATES
DEPARTMENT OF JUSTICE,
COMMUNITY RELATIONS SERVICE, EXCLUDING ALL MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND
SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED.
AS STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES, AND, THEREFORE, THE DESIRES OF THE PROFESSIONAL EMPLOYEES AS
TO INCLUSION IN A UNIT WITH NONPROFESSIONAL EMPLOYEES MUST BE
ASCERTAINED, AND THE AUTHORITY WILL DIRECT THAT SEPARATE ELECTIONS IN
THE FOLLOWING GROUPS.
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE UNITED STATES
DEPARTMENT OF JUSTICE, COMMUNITY RELATIONS SERVICE, EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491,
AS AMENDED.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES OF THE UNITED STATES
DEPARTMENT OF JUSTICE, COMMUNITY RELATIONS SERVICE, EXCLUDING ALL
PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491,
AS AMENDED.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER THEY DESIRE TO BE REPRESENTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOT: (1) WHETHER THEY WISHED TO BE INCLUDED WITH
THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE RECOGNITION;
AND (2) WHETHER THEY WISH TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) IS
CAST IN FAVOR OF INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL
EMPLOYEES, THE BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE
OF VOTING GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) IS CAST FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THEY WILL
BE TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT,
AND AN APPROPRIATE CERTIFICATION WILL BE ISSUED BY THE APPROPRIATE
REGIONAL DIRECTOR INDICATING WHETHER THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, WAS SELECTED BY THE PROFESSIONAL EMPLOYEE
UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, THE AUTHORITY WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO
THE APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTED FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE AUTHORITY FINDS
THAT THE FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, AS
AMENDED.
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE UNITED STATES
DEPARTMENT OF JUSTICE,
COMMUNITY RELATIONS SERVICE, EXCLUDING ALL MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND
SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE
AUTHORITY FINDS THAT THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL
CONSTITUTE SEPARATE UNITS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED:
(A) ALL EMPLOYEES OF THE UNITED STATES DEPARTMENT OF JUSTICE,
COMMUNITY RELATIONS SERVICE,
EXCLUDING ALL PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, AND SUPERVISORS AS
DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED.
(B) ALL PROFESSIONAL EMPLOYEES OF THE UNITED STATES DEPARTMENT OF
JUSTICE, COMMUNITY
RELATIONS SERVICE, EXCLUDING ALL NONPROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS
AMENDED.
DIRECTION OF ELECTIONS /7/
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE UNITS FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN 60
DAYS FROM THE DATE BELOW. THE APPROPRIATE REGIONAL DIRECTOR SHALL
SUPERVISE THE ELECTIONS, SUBJECT TO THE AUTEORITY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNITS WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BLOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE ALL EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION, IN CASE NO. 22-09043(RO) BY THE
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,
CAPITOL AREA COUNCIL OF FEDERAL EMPLOYEES, NO. 26, AND IN CASE NO.
22-09093(RO) BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, RESPECTIVELY.
ISSUED, WASHINGTON, D.C., JUNE 20, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ AFTER THE HEARING THE AGENCY, THE DEPARTMENT OF JUSTICE (DOJ),
MOVED TO REOPEN THE RECORD TO "CORRECT" THE TESTIMONY OF A WITNESS
CONCERNING HIS OPINION OF THE NUMBER OF STAFF EMPLOYEES WHICH MIGHT BE
NEEDED IF IN THE FUTURE ADDITIONAL RECOGNIZED UNITS WERE FOUND
APPROPRIATE. THE AFSCME AND THE AFGE FILED OPPOSITIONS TO THE MOTION.
UNDER ALL THE CIRCUMSTANCES, AND NOTING THAT THE PROPOSED MODIFICATION
CONCERNS ONLY OPINION BASED ON A SPECULATIVE SET OF FACTS, THE MOTION IS
HEREBY GRANTED.
/2/ THE RECORD REVEALS THAT IN PROVIDING DIRECT ADMINISTRATIVE
ASSISTANCE TO THE OBDS, THE AAG/A'S RESPONSIBILITIES ARE LARGELY OF A
SUPPORT NATURE TO THE OBD DIRECTORS AND HEADS WITH RESPECT TO PERSONNEL
ACTIONS, BUT THAT THEY RETAIN CONSIDERABLE DISCRETION IN IMPLEMENTING
PERSONNEL AND ADMINISTRATIVE POLICIES.
/3/ THE RECORD REFLECTS THAT ASIDE FROM A SMALL AUDIT UNIT IN
BURLINGAME, CALIFORNIA, WHICH IS NOT INCLUDED IN THE PETITIONED FOR
UNIT, ALL OF THE OMF EMPLOYEES ARE LOCATED AT THE WASHINGTON, D.C.
HEADQUARTERS OF THE DOJ.
/4/ THE NEGOTIATED AGREEMENT WITH THE BIA ORIGINALLY EFFECTIVE IN
1976 AND SINCE RENEWED, COVERS AMONG OTHER THINGS, MANAGEMENT RIGHTS,
EMPLOYEE RIGHTS, UNION RIGHTS AND REPRESENTATION, USE OF OFFICIAL
FACILITIES AND SERVICES, GRIEVANCE PROCEDURES, ARBITRATION, DISCIPLINARY
ACTIONS, OVERTIME, LEAVE, SAFETY AND HEALTH, PROMOTIONS, WORK DETAILS,
EQUAL EMPLOYMENT OPPORTUNITY, REDUCTIONS-IN-FORCE, DUES WITHHOLDING,
POSITION DESCRIPTIONS, PERFORMANCE EVALUATIONS, HOURS OF WORK, ETC.
/5/ AS PREVIOUSLY NOTED THE VARIOUS OBDS REPORT ORGANIZATIONALLY AND
ADMINISTRATIVELY THROUGH DIFFERENT CHANNELS.
/6/ IN THE INSTANT PROCEEDING THE AUTHORITY FINDS ONLY THAT THE
PETITIONED FOR UNITS ARE APPROPRIATE. THE CONCLUSIONS HEREIN ARE NOT TO
BE CONSTRUED AS INFERRING THAT ANY OTHER OBD, BUREAU, OR OTHER
ADMINISTRATIVE UNIT OF THE DOJ, OR COMBINATION THEREOF, IS APPROPRIATE,
OR INAPPROPRIATE, FOR THE PURPOSES OF EXCLUSIVE RECOGNITION.
/7/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HA